Vacancies on the Federal Bench

Robert Kuttner points out that there "are now more than 100 vacancies on the federal bench, out of some 856 federal district and appellate judges, far more than on the day Obama took office". During Obama’s first term, total judicial vacancies increased by 51 percent. During the first terms of Clinton and Bush, they declined by 65 and 34 percent respectively.

"Senate Republicans have resorted to unprecedented use of filibusters and threats of filibusters to keep the courts as Republican as possible for as long as possible. Even on district court judges, posts that used to be easily confirmed, Republicans have used filibusters 20 times. Obama’s total confirmation rate is 75 percent, compared to 88 percent for Bush four years into his presidency.

When Barack Obama took office in January 2009, the federal courts had been made over by the two-term Bush Administration. Bush had appointed fully 40 percent of all sitting judges.

"One of the archaic forms of Senatorial courtesy routinely abused by today’s Republicans is the long-standing custom of allowing the home state senators of a nominee to weigh in on a judicial appointment. The Judiciary Committee gives the two relevant senators a blue slip, which they are expected to return with favorable or unfavorable comments. Until the current era of vicious polarization, this courtesy more or less worked."

"But in today’s poisoned atmosphere, the use of blue slips gives the Republicans three separate opportunities to obstruct. One or both home state senators can advise the White House that a proposed nominee will not get a blue slip. The Obama White House then typically comes up with a more moderate appointee. But after Republican senators have agreed to accept a nominee, they sometimes decide not to return the blue slip, as has been the case with about ten Obama nominees. And even after blue slips are returned, the Republican leadership sometimes decides to filibuster."

"Today, with over 100 vacancies, according to a tabulation by the American Constitution Society, there are 30 judgeships for which the White House has yet to propose a nominee, including three in the northern district of Illinois—the president’s own hometown of Chicago. In terms of sheer numbers, Obama has lately appointed judges at a somewhat faster clip than in his first two years, but the trade-off is fewer liberals."

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